De Haan v. Winter

• Decision Date: 04 April 1932
• Docket Number: No. 76.,76.
• Citation: 241 N.W. 923,258 Mich. 293
• Parties: DE HAAN v. WINTER.
• Court: Michigan Supreme Court

258 Mich. 293

241 N.W. 923

DE HAAN

v.WINTER.

No. 76.

Supreme Court of Michigan.

April 4, 1932.

Appeal from Circuit Court, Allegan County; Fred T. Miles, Judge.

Action by Edward De Haan against William G. Winter. From the judgment, defendant appeals.

Reversed, and a new trial ordered.

Argued before the Entire Bench.Diekema, Cross & Ten Cate, of Holland, and L. W. Harrington, of Grand Rapids, for appellant.

Leo W. Hoffman, and Clare E. Hoffman, both of Allegan, Mich., and Paul E. Cholette, of Grand Rapids, for appellee.

WIEST, J.

This is an action against a physician to recover damages for alleged malpractice in setting and treating plaintiff's broken leg.

November 30, 1926, both bones of plaintiff's left leg were broken about eight inches above the ankle. He employed a physician, not defendant, and was under his care for ten weeks. February 3, 1927, plaintiff employed defendant, and an X-ray examination disclosed that the bones were not in apposition, but the broken ends passed for some inches. Defendant made an incision in the leg, prepared and aligned the bones in proper manner, sutured them with catgut, and incased the leg in a plaster cast. Up to such point the treatment was proper, but, it is alleged, malpractice followed in not taking X-ray pictures of the condition during the curative process, in not employing traction or extension weights, and in placing a pillow just back of the heel raising the foot several inches, without support under the injured leg. Plaintiff's leg is now bowed backward; there has been union of the small bone, but only union in part of the large bone, and the leg is weak.

This suit was brought November 15, 1929, by declaration, without allegation excusing delay for more than two years. The statute, C. L. 1929, § 13976, provides that an action for malpractice of a physician or surgeon shall be brought within two years from the time the cause of action accrues. Section 13983, C. L. 1929, provides, however, that if the cause of action is fraudulently concealed by the physician the action may be commenced within two years after discovery.

Defendant moved to dismiss, and plaintiff asked and was granted leave to amend. There was no error in granting such leave. The amended declaration, however, did not sufficiently allege, neither did the proofs at the trial show, the essential elements of fraudulent concealment of plaintiff's cause of action. Fraudulent concealment means employment of artifice, planned to prevent inquiry or escape investigation, and mislead or hinder acquirement of information disclosing a right of action. The acts relied on must be of an affirmative character and fraudulent.

When did plaintiff's cause of action accrue? Until treatment of the fracture ceased the relation of patient and physician continued, and the statute of limitations did not run. Schmit v. Esser, 183 Minn. 354, 236 N. W. 622, and reported with annotations in 74 A. L. R. 1312. While decisions are not in accord upon this question, we are satisfied that in such an action as this the statute of limitations does not commence to run while treatment of the fracture continues. Failure to give needed continued care and treatment, under opportunity and obligation the course of treatment plaintiff was not the course of treatment plaintiff was not put to inquiry relative to the treatment accorded him.

Plaintiff testified that about a week before defendant took an X-ray picture of his leg on February 19, 1929, the defendant placed a bandage around his injured leg and before that he had repeatedly visited the defendant's office relative to his leg and the pain it was causing him, and defendant had given him capsules to ease the pain, and assured him that it would take time to perfect a cure. If defendant bandaged the injured leg in February, 1929, then this suit, commenced November 15, 1929, was not barred by the statute of limitations. The court so instructed the jury.

Plaintiff claimed that, when the defendant performed the operation and placed the leg in a plaster cast, a pillow was placed under or just above the heel, with no support under the incased leg. In a hypothetical question to plaintiff's experts this was included as a fact. The experts had to assume that it was true. The jury, in answer to a special question, found that it was not true.

Defendant requested the court to instruct the jury: ‘You are instructed that an expert witness, in answering a hypothetical question, assumes as true every asserted fact stated in the question. I, therefore, instruct you that if you find that the evidence fails to establish the truth of the asserted facts in the hypothetical questioin, then you cannot consider the answer of the expert to that hypothetical question, but must disregard such answer.’

The court instructed the jury: ‘An expert witness, in answering a hypothetical question, assumes as true every asserted fact stated in the question.’

The requested instruction should have been given. Turnbull v. Richardson, 69 Mich. 400, 37 N. W. 499;Ballance v. Dunnington, 241 Mich. 383, 217 N. W. 329, 330, 57 A. L. R. 262. In the latter case we said: ‘It should be remembered that an expert witness, in answering a hypothetical question, must accept as true every asserted fact stated therein, but the jury cannot consider the answer of the expert unless they find the evidence establishes the truth of...